State v. Whitney

• Decision Date: 04 January 1912
• Citation: 120 P. 116,66 Wash. 473
• Parties: STATE v. WHITNEY et ux.
• Court: Washington Supreme Court

120 P. 116

66 Wash. 473

STATE v. WHITNEY et ux.

Supreme Court of Washington

January 4, 1912

Department 2. Appeal from Superior Court, Skagit County; Geo. A. Joiner Judge.

Action by the State against Edward R. Whitney and wife. Judgment for defendants, and plaintiff appeals. Reversed and remanded with directions.

W. V Tanner and R. E. Campbell, for the State.

John Arthur, for respondents.

MORRIS, J.

The state brought this action to recover possession of and quiet title to land in section 36, township 34 north, range 7 east alleging that it became the owner under and by virtue of the grant from the United States as contained in the enabling act of February 22, 1889, and that respondents are wrongfully in possession. Respondents answered, alleging a settlement upon the land in 1902; that the title to the land was then in the United States; that on April 25, 1906, the plat of said land was filed in the local land office; and that respondent Edward R. Whitney on said day filed his homestead application, which was allowed. Respondents further allege the making of improvements upon the land with the knowledge and consent of the state, and claim an estoppel against any assertion of title on the part of the state. A demurrer was interposed to this defense, which was overruled, and thereafter the case was dismissed. The answer and the demurrer properly raising all the questions of law involved in the case, the state has appealed, and we are now called upon to review the questions of law submitted by the demurrer.

The questions to be determined by this appeal involve two main propositions: The nature and extent of the grant to the state as contained in the enabling act of 1889, and the intent and effect of the act of Congress of February 28, 1891, as restricting or modifying this grant.

The state bases its title upon the enabling act of February 22, 1889, as found in 25 Stats. at L. 676. Section 10 and 11 are as follows:

'Sec. 10. That upon the admission of each of said states into the Union, sections numbered sixteen and thirty-six in every township of said proposed states, and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said states for the support of common schools, such indemnity lands to be selected within said states in such manner as the Legislature may provide, with the approval of the Secretary of the Interior: Provided, that the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character, be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.

'Sec. 11. That all lands herein granted for educational purposes shall be disposed of only at public sale, and at a price not less than ten dollars per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulation as the Legislature shall prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such land shall not be subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.'

By these two sections the state contends the federal government made a present grant of sections 16 and 36 in each township to the state of Washington upon its admission into the Union, and that, although many of these lands were then unsurveyed, the title passed and vested in the state upon its admission, as of the date of the grant, and all that remained for the federal government to do thereafter was to extend its surveys over these sections, and thus identify them. An examination of the different acts under which Congress has granted lands to the different states, beginning with that to Indiana in 1816, will disclose that in the act of 1889, under which the states of North and South Dakota, Montana, and Washington came into the Union, Congress has for the first time in prescribing the conditions of the grant provided in section 11: 'And such land shall not be subject to pre-emption, homestead entry or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.' Prior to the grant to California in 1853, the words used to indicate the grant were 'shall be granted.' These words have uniformly been held to signify the intention of Congress to make a grant in futuro to become effective when the lands were subject to identification by survey. In the California act and in that of Nevada and Nebraska the words used were, 'shall be and are hereby granted.' In 1875, in the grant to Colorado, Congress for the first time made use of words indicating its purpose as we view it to change from a grant in futuro to a grant in praesenti by employing the words 'are hereby granted.' This act was followed by the act in question when, in addition to making a grant in praesenti by using the words of the Colorado act, 'are hereby granted,' the further provision was made that such land should not be subject to any form of entry under the land laws of the United States. We cannot conceive how Congress could have employed stronger language to indicate its purpose and intention to divest the United States of all title in these lands, and grant them to the several states for school purposes. We must assume that, in changing its language from words of future grant as in the earlier acts to the words employed in this act, it did so advisedly, and sought in the restriction against any form of entry, as found in section 11, to indicate its intent to pass to the states all title and control over these lands, save the right of entry for the purpose of survey. That the words 'hereby granted' indicate a grant in praesenti and pass not a special or limited interest in the land, but are words of absolute donation and vest a present title subject only to survey, to give precision to the grant and attach it to any particular tract, is to our minds established by the federal cases reviewing such language as applied to grants from the federal government, as held in Missouri, Kan. & Tex. Ry. Co. v. Kan. P. Ry. Co., 97 U.S. 491, 24 L.Ed. 1095; St. Paul & P. R. Co. v. N. P. R. Co, 139 U.S. 1, 11 S.Ct. 389, 35 L.Ed. 77. In the latter case it is said: 'The language of the statute is that there be and hereby is granted to the company every alternate section of the lands designated, which implies that the property itself is passed, not any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. * * * This is the construction given to similar grants by this court where the question has been often considered; indeed, it is so well settled as to be no longer open to discussion. Schulenberg v. Harriman, 21 Wall. 44 ; Leavenworth-Lawrence, etc., R. Co. v. U. S., 92 U.S. 733 ; Missouri, Kansas Ry. Co. v. Kan. P. Ry. Co., 97 U.S. 491 ; Railroad Co. v. Baldwin, 103 U.S. 426 . The terms of the present grant are in some cases qualified by other portions of the granting act as in the case of Rice v. Railroad Co., 1 Black. 358 ; but, unless qualified, they are to receive the interpretation mentioned.' The above language is quoted in the subsequent case of United States v. Southern Pacific R. Co., 146 U.S. 570, 13 S.Ct. 152, 36 L.Ed. 1091, where, in construing a grant to the Atlantic & Pacific Railroad Company, made in 1866, and one to the Southern Pacific Railroad Company in 1871, wherein the same lands were contained, it was held that, notwithstanding the Atlantic & Pacific did not construct its line and its rights were forfeited and the lands restored to the public domain by Act July 6, 1886, c. 637, 24 Stat. 123, the Southern Pacific could not claim title to the lands by virtue of its grant and the construction of its road, because the grant could take effect by relation only as of the date in 1871, and at that time and for nearly five years theretofore the title to these lands had been in the Atlantic & Pacific, and that, even if Congress had in terms expressed an intent to that effect in a subsequent act, it was not competent by such legislation to divest the rights already vested in the Atlantic & Pacific. The same rule is announced in Denver & Rio Grande v. Alling, 99 U.S. 463, 25 L.Ed. 438, and in Deseret Salt Co. v. Tarpey, 142 U.S. 241, 12 S.Ct. 158, 35 L.Ed. 999, where it is said, in construing the Union Pacific grant there involved: 'By the terms of the act making the grant the contention of the defendant is not supported. Those terms import the transfer of the present title, not one to be made in the future. They are that 'there be and is hereby granted' to the company. * * * No partial or limited interest is designated, but the lands themselves are granted, as they are described by the sections mentioned. Whatever interest the United States possessed in the lands was covered by those terms, unless they were qualified by subsequent provisions.'

We find the same principle announced in Leavenworth, Lawrence &amp Galveston R. Co. v. United States, 92...